JUDGMENT - S.D. GUNDEWAR, J.:---Both these criminal appeals arise out of one and the same judgment passed by the learned Special Judge, Nagpur in Special Criminal Case No. 46 of 1996 on 3-3-1996, hence we propose to dispose them of by this common judgment. 2. Crime Appeal No. 101/98 is filed by Ashok Hathuji Kutarmare (original accused No. 2), while Criminal Appeal No. 172/98 is preferred by Prema Pramila wd/o Suresh Ambatkar (original accused No. 1). Both the appellants challenge their conviction and sentence under section 21 and section 21 r/w section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "N.D.P.S. Act"). The learned Special Judge convicted both the appellants/accused under section 21 of the N.D.P.S. Act and sentenced each of them to suffer R.I. for 10 years and to pay fine of Rs. 1,00,000/-, in default to suffer R.I. for two years. Both the appellants/accused were also found guilty under section 21 r/w section 29 of the N.D.P.S. Act. However, no separate sentence has been imposed upon them. 3. The prosecution case, in brief, is as under : On 25-5-96 Head Constable Deorao Patil (P.W. 10) then attached to the Crime Branch (Special Narcotic Cell), Nagar Left the office alongwith P.S.I. and other police staff for effecting raids in connection with Narcotic Drugs and an entry to that effect was taken by him in the station diary. H.C. Deorao also took with him weights, balance and sealing devise, when he left the office of Crime Branch for carrying out raids. On way when H.C. Deorao happened to be in Cotton Market Chowk, he received a secret information from an informant that a lady by name Prema aged about 30-35 years possessed brown sugar and was making sell of it near Primary School, Ganeshpeth situated near the house of her mother. H.C. Deorao informed the Police Inspector Chandel about the same on phone as P.I. Chandel was his immediate official superior. Having received the said intimation. P.I. Chandel permitted H.C. Deorao to carry out the raid on the said lady with an intimation that he would be reaching there soon. Thereafter, H.C. Deorao fetched two panchas namely (1) Rajesh Baburao Wadelal and (2) Ashishkumar Premlal Samudre and apprised them of the sum and substance of the information received by him. He then prepared a report of the information received by him. Thereafter, H.C. Deorao fetched two panchas namely (1) Rajesh Baburao Wadelal and (2) Ashishkumar Premlal Samudre and apprised them of the sum and substance of the information received by him. He then prepared a report of the information received by him. By that time P.I. Chandel reached there, to whom he had handed over the said report. A lady Police Constable Hamida Khan was also accompanying the raiding party. After the arrival of the Police Inspector Chandel, the raiding party alongwith panchas proceeded towards the Primary School, Ganeshpeth, and on reaching there, they saw one lady alongwith a boy standing near a telephone pole. Both of them were accosted and on being questioned the said lady gave out her name as Prema; while the boy disclosed his name as Ashok Hathuji. After intimating the purpose of the raid and search; both of them were informed that they were entitled to have their personal searches being taken either before a Gazetted Officer or a Magistrate, to which they declined. They were also informed about the same in writing and only after their denial, the signature of the said lady and thumb impression of the boy were obtained on the said writing. Thereafter, H.C. Deorao asked the lady Constable Hamida Khan to search the lady Prema by taking her in a nearby cattle shed. The lady police constable Hamida Khan then took Prema to the said cattle shed, where Prema took out one green coloured polythene bag, which was concealed by her under her blouse and produced it before the lady Police Constable Hamida Khan. Lady Police Constable Hamida Khan then produced the said polythene bag before the H.C. Deorao. It was opened. It contained brown sugar. It was weighed and found to be 4 grams and 85 Milligrams. Out of the same two samples, each being of 100 Milligrams were taken. Both the samples of brown sugar were sealed separately and were marked as S-1 and D-1. Remaining brown sugar was also sealed in a separate packet and marked as P-1. The labels bearing the signatures of the H.C. Deorao, said lady Prema and the panchas were pasted on those packets. H.C. Deorao then affixed his seals on those packets. 4. In the course of the search of a boy namely Ashok, one packet containing brown sugar was found with him, weighing about 9 grams and 235 milligrams. The labels bearing the signatures of the H.C. Deorao, said lady Prema and the panchas were pasted on those packets. H.C. Deorao then affixed his seals on those packets. 4. In the course of the search of a boy namely Ashok, one packet containing brown sugar was found with him, weighing about 9 grams and 235 milligrams. out of which, two samples, each being of 100 Milligrams were taken. Both the samples were separately sealed and marked as S-2 and D-2. Remaining brown sugar was also sealed separately and marked as P-2. The lables bearing signatures of H.C. Deorao, panchas and thumb impression of the said boy were pasted on those packets, which were then duly sealed. A detailed panchanama of the same was drawn. 5. Thereafter the said lady and the boy, being original accused No. 1 and 2 respectively were put under arrest and taken to the Police Station, Ganeshpeth where H.C. Deorao lodged his report in the matter. He also prepared C.A. forms and handed over his report, C.A. forms and the seized property to P.S.I. Dange, who was on duty as P.S.O. In the said police station on the basis of the said report P.S.I. Dange registered an offence as Crime No. 127/96 against both the accused and handed over the property in sealed condition to N.C. Wasnik, who was then Muddemal in-charge in the said Police Station. N.C. Wasnik took an entry about the same in the property register and sent the sample packets to Chemical Analyser for analysis alongwith P.C. Gajanan on 27-5-96 with invoice challan. P.C. Gajanan carried the said sample packets and deposited the same in the office of C.A., Nagpur on the same day. 6. In the meantime, the police custody of original accused No. 1 Prema was obtained and on 26-5-96 when she was being interrogated in the presence of panchas, she disclosed that she had kept some brown sugar in a cupboard in the house of her mother and that she would produce the same. A memorandum to that effect was prepared. Thereafter, accused No. 1 Prema led H.C. Deorao, P-1. Chandel and panchas to the house of her mother and produced one packet, which was kept in the pocket of the pant of her son, before H.C. Deorao. The said packet was opened. It contained 10 tiny packets. A memorandum to that effect was prepared. Thereafter, accused No. 1 Prema led H.C. Deorao, P-1. Chandel and panchas to the house of her mother and produced one packet, which was kept in the pocket of the pant of her son, before H.C. Deorao. The said packet was opened. It contained 10 tiny packets. All those packets were also opened and the brown sugar found in those packets was collected together and weighed. It was found 9 grams and 290 milligrams. H.C. Deorao then searched the said cupboard and found weighing scale and weights of 10 grams, 5 grams and 1 gram in the said cupboard. He also found 10 empty polythene wrappers in the said cupboard. Out of the said brown sugar two samples, each being of 100 milligrams were taken and the samples, and the remaining brown sugar were sealed separately. The sample packets were marked as S-3 and D-3 while packet containing remaining brown sugar was marked as P-3. The labels bearing the signatures of H.C. Deorao the accused Prema and the panchas were pasted on those packets. H.C. Deorao also affixed his seal on the said packets in the presence of panchas. He then took accused No. 1 Prema to the Police Station Ganeshpeth alongwith the seized property. On reaching the Police Station. H.C. Deorao lodged his complaint. He also prepared C.A. form and handed over his complaint, C.A. form and the seized property to P.S.I. Pawar, who was then on duty as P.S.O. in the said Police Station. P.S.I. Pawar also affixed his seal on those packets, which were then handed over to the Malkhana in-charge of the said Police Station. The said sample packets were then sent to Chemical Analyser for analysis alongwith P.C. Gajanan. P.C. Gajanan received the said sample packets on 30-5-96 alongwith C.A. Form and deposited the same in the office of the Chemical Analyser on the same day. 7. Two Chemical Analyser's reports (Exhibits 61 and 62) were received, which indicated that Heroin (Diacetylmorphine) was detected in all the samples alongwith other opium alkaloids. After the receipt of the reports of the Chemical Analyser, the charge sheet came to be presented against both the appellants accused in the Court of Special Judge, Nagpur. 8. 7. Two Chemical Analyser's reports (Exhibits 61 and 62) were received, which indicated that Heroin (Diacetylmorphine) was detected in all the samples alongwith other opium alkaloids. After the receipt of the reports of the Chemical Analyser, the charge sheet came to be presented against both the appellants accused in the Court of Special Judge, Nagpur. 8. The learned Special Judge framed the charge (Exhibit 10) against both the appellants accused under section 21 and also under section 21 r/w section 29 of the N.D.P.S. Act. It was explained to both the appellants accused, to which they pleaded not guilty and claimed to be tried. Their defence was one of total denial. It was the defence of the accused No. 1 that she obstructed police when they tried to accost her brother Purushottam Bhaurao and hence she has been falsely implicated by police in this case, while it was contended by accused No. 2 Ashok that the police had once asked him to sign the panchanama and as he refused to sign it, a false case has been foisted against him by the police. 9. In support of it's case the prosecution examined in all 10 witnesses including P.I. Chandel (P.W. 4). Panchas Dilip, Rajesh and Ashishkumar (P.W. 6, 7, and 9) and H.C. Deorao Patil (P.W. 10). In addition to the said oral evidence, the prosecution also produced certain documentary evidence including C.A. Reports. 10. The learned Special Judge after hearing both the sides and upon considering the entire evidence on record convicted and sentenced the appellants accused as stated earlier. 11. Shri Daga, learned Counsel appearing for the appellant accused in Criminal Appeal No. 172/98 contended that there was no compliance of the provisions of section 42 of the N.D.P.S. Act. According to him, though the H.C. Deorao received a prior information, he did not reduce the same into writing, nor sent it's copy to his immediate official superior forthwith as required under section 42(2) of N.D.P.S. Act, and hence due to non compliance of the said provisions of section 42 of the N.D.P.S. Act the trial is vitiated. 12. Mrs. According to him, though the H.C. Deorao received a prior information, he did not reduce the same into writing, nor sent it's copy to his immediate official superior forthwith as required under section 42(2) of N.D.P.S. Act, and hence due to non compliance of the said provisions of section 42 of the N.D.P.S. Act the trial is vitiated. 12. Mrs. Khade, learned A.P.P. vehemently submitted that considering the fact that both the appellants accused were found in public place; provisions of section 43 and not of section 42 of the N.D.P.S. Act would apply, wherein there is no provision that before proceeding to the place indicated it is necessary for the concerned officer who received the information to reduce the same into writing and send it's copy to his immediate superior officer. 13. We find much force in the aforesaid submissions made by learned A.P.P. The comparative reading of sections 42 and 43 of the N.D.P.S. Act makes it very clear that section 42 is relating to the procedure to be followed when the offence is committed inside the building and section 43 is applicable to the seizure and arrest of the suspected persons in a public place. In the present case both the appellants/accused were found near the Primary School, Ganeshpeth, which is a public place and therefore in our view the provisions of section 43 and not of 42 are attracted in this case and as the provisions of section 43 do not contemplate that secret information received by the officer concerned shall be reduced into writing and a copy thereof shall be sent by him to his immediate superior officers and hence the question of non compliance of provisions of section 42 does not arise. However, from the evidence of H.C. Deorao it is clear that soon after the receipt of the secret information by him he prepared a report (Exhibit 38) and handed over the same to P.I. Chandel, his immediate superior officer on his arrival at the spot. This clearly indicates that though the provisions of section 42 of the N.D.P.S. Act are not applicable to the present case the concerned officer had complied with the same. In this view of the matter we find no merit in the aforesaid submission made by the learned Counsel for the appellant accused No. 1 Prema. 14. This clearly indicates that though the provisions of section 42 of the N.D.P.S. Act are not applicable to the present case the concerned officer had complied with the same. In this view of the matter we find no merit in the aforesaid submission made by the learned Counsel for the appellant accused No. 1 Prema. 14. Shri Daga, learned Counsel for the appellant accused Prema also contended that when the accused No. 1 Prema was interrogated by H.C. Deorao she disclosed that she possessed some more contraband i.e. Brown Sugar, which she had kept in the pocket of a pant of her son in the house of her mother and that she would produce the same. On the basis of the said information a memorandum (Exhibit 48) was prepared by H.C. Deorao in the presence of two panchas under section 27 of the Evidence Act and in consequence of the said information the discovery of 9 grams and 290 milligrams of Brown Sugar was made from the house of the mother of the accused No. 1 Prema. According Shri Daga in fact this was a prior information given by the accused No. 1 Prema to H.C. Deorao, at least to the extent of 9 grams and 290 milligrams of brown sugar that was seized from the pocket of the pant of her son from the house of her mother and, therefore, it was necessary for H.C. Deorao to reduce the same in to writing and send it's copy to his immediate superior officer as required under section 42(2) of the N.D.P.S. Act and as it was not done the entire trial is vitiated and the appellant accused No. 1 Prema is entitled for an acquittal on this count. 15. As against this Mrs. Khade, learned A.P.P. submitted that the recovery of 9 grams and 290 milligrams of Brown Sugar was made at the instance of accused No. 1 Prema under section 27 of the Evidence Act and therefore it cannot be said that it was a prior information received from an informant and therefore it was required to be reduced in to writing. Khade, learned A.P.P. submitted that the recovery of 9 grams and 290 milligrams of Brown Sugar was made at the instance of accused No. 1 Prema under section 27 of the Evidence Act and therefore it cannot be said that it was a prior information received from an informant and therefore it was required to be reduced in to writing. We find much substance in the aforesaid submission made by the learned A.P.P. In fact it was a discovery in consequence of an information supplied the accused No. 1 Prema herself while she was in police custody and therefore, in our view the provisions of section 42 would not be attracted. The submission made by Shri Daga, in this behalf, therefore, cannot be accepted. 16. Shri Daga further contended that in view of the provisions of section 50(4) of the N.D.P.S. Act while conducting a personal search of a woman females panchas must be called and the search of the accused must be taken in presence of such female panchas. According Shri Daga merely calling Female officer to search the woman accused will not fulfill; legislative intent. Shri Daga pointed out that in the present case, though the Lady P.C. Hamida Khan took personal search of accused No. 1 Prema, it was not in the presence of any female panchas and, therefore, there being no compliance of provisions of section 50(4), the investigation and trial are vitiated and the accused No. 1 Prema is entitled to be acquitted. For this he placed reliance on a decision of Division Bench of this Court in (Veneela Tilak v. Shahasane, Assistant Collector of Customs and another)1, reported in 1997(2), Mh.L.J. page 332. 17. It is not doubt true that as per the provisions of section 50(4) of the N.D.P.S. Act, no female shall be searched by any one excepting the female. Admittedly in the instant case the accused No. 1 Prema was searched by a lady P.C. Hamida khan. It is also true that accused No. 1 Prema was not searched in the presence of female panchas. In our view what is required by section 50(4) of the N.D.P.S. Act is that no female shall be searched by any one excepting female. The intention behind the aforesaid provision is to protect the modesty of a woman and to prevent a possible invasion of the same by an unscrupulous investigating agency. In our view what is required by section 50(4) of the N.D.P.S. Act is that no female shall be searched by any one excepting female. The intention behind the aforesaid provision is to protect the modesty of a woman and to prevent a possible invasion of the same by an unscrupulous investigating agency. In the present case as the accused No. 1 Prema was searched by Lady P.C. by taking her to a cattle shed, which is a secluded place and that she was not searched in the presence of any of the male panchas, it cannot be said that there was no compliance of the provisions of section 50(4) of the N.D.P.S. Act. On going through the facts of the aforesaid case cited by Shri Daga we find that it is not applicable to the facts of the present case and therefore in our view the said decision is of no avail to the appellant accused No. 1 Prema. 18. Mr. Padiyar, learned Counsel appearing for the appellant original accused No. 2 in Criminal Appeal No. 101/98 submitted that there was no compliance of provisions of section 50 of the N.D.P.S. Act as the appellant original accused No. 2 was not orally informed by H.C. Deorao about his valuable right that he was entitled to have his personal search being taken either before a Gazetted Officer or a Magistrate. According to Shri Padiyar it was only the accused No. 1, who was informed about the same and therefore, there being non compliance of the aforesaid provision so far as appellant/original accused No. 2 is concerned, the trial as against him is vitiated and he is entitled to an acquittal on this count. 19. Now, if we go through the evidence of H.C. Deorao we find that he has in very clear terms told the Court that after he accosted both the appellants/accused, he informed them as to whether they intend to offer their personal search before a Gazetted Officer or a Magistrate, to which they declined. If this evidence of H.C. Deorao is considered alongwith the writing (Exhibit 46), It clearly indicates that both the appellants/accused Nos. 1 and 2 were informed that they were entitled to have their personal searches being taken either before a Gazetted Officer or a Magistrate to which they declined. If this evidence of H.C. Deorao is considered alongwith the writing (Exhibit 46), It clearly indicates that both the appellants/accused Nos. 1 and 2 were informed that they were entitled to have their personal searches being taken either before a Gazetted Officer or a Magistrate to which they declined. It is no doubt true that the panch witness P.W. 9 Ashish Kumar Samudre did not speak about the same. However, in view of the aforesaid evidence of H.C. Deorao and the writing (Exhibit 46) it cannot be said that there was non compliance of the provisions of section 50 of the N.D.P.S. Act. In this view of the matter we find no merit in the aforesaid contention made on behalf of the appellant/original accused No. 2. 20. After considering the evidence of H.C. Deorao (P.W. 10) Lady P.C. Hamida Khan (P.W. 8); Panch witnesses Dilip, Rajesh and Ashishkumar Samudre (P.W. 6, 7 and 9) and P.I. Chandel (P.W. 4) we find that the prosecution has established beyond doubt that both the appellants/original accused No. 1 and 2 were accosted near Primary School, Ganeshpeth in pursuance of the information received by H.C. Deorao and in the course of their personal searches 4 gram and 85 milligrams of brown sugar was found and 290 milligrams brown sugar was found with appellant/original accused No. 2. Their evidence also goes to show that 9 grams and 290 milligrams of brown sugar was recovered at the instance of the appellant/original accused No. 1 Prema from the house of her mother. So also their evidence goes to show that out of the aforesaid brown sugar samples were taken and the samples and the remaining brown sugar were separately sealed. 21. The evidence of P.S.I. Dange (P.W. 1) and that of P.S.I. Pawar (P.W. 2) indicates that after H.C. Deorao handed over the seized property, they also affixed their seals thereon and handed over the same to H.C. Wasnik (P.W. 3). The evidence of the H.C. Wasnik shows that after the seized property was handed over to him, he took the entry about the same in the property register and handed over the samples packets to P.C. Gajanan (P.W. 5) for being deposited in the office of Chemical Analyser, Nagpur for analysis. The evidence of the H.C. Wasnik shows that after the seized property was handed over to him, he took the entry about the same in the property register and handed over the samples packets to P.C. Gajanan (P.W. 5) for being deposited in the office of Chemical Analyser, Nagpur for analysis. The evidence of P.C. Gajanan shows that after he received the samples packets from H.C. Wasnik he deposited the same in the office of Chemical Analyser, Nagpur. The reports of Chemical Analyser, Nagpur (Exhibits 61 and 62) clearly indicate that the Heroin (Diacetylmorphine) was detected in Exhibit Nos. (1) and (2) alongwith other opium alkoloids. Heroin falls under section 2(xvi) of the N.D.P.S. Act. 22. The aforesaid evidence thus in our view clearly establishes the complicity of the appellants/original accused No. 1 and 2 regarding the offences punishable under sections 21 and 21 r/w section 29 of the N.D.P.S. Act as both of them were found in possession of Heroin and have also abetted each other and criminally conspired to self the brown sugar. We therefore, find that the learned Special Judge has rightly convicted both the appellants/original accused Nos. 1 and 2 of the offences punishable under section 21 and section 21 r/w section 29 of the N.D.P.S. Act. We, therefore, do not find any reason to interfere with the conclusions arrived at by the learned Special Judge in this behalf. 23. In the result, both the Criminal Appeals bearing No. 101/98 and 172/98 being devoid of any merit are dismissed. The conviction and sentences imposed upon the appellants/original accused Nos. 1 and 2 by the learned Special Judge are confirmed. The appellants/original accused Nos. 1 and 2 are found guilty of the offences punishable under section 21 and sections 21 r/w 29 of the N.D.P.S. Act. Appeals dismissed. -----